Pearl Harbor Day offers a stark constitutional lesson for independent voters in California and across the nation. Less than twenty-four hours after being bombed by Japan, FDR demanded and received an official declaration of war by the US Congress. A few days later, Congress would officially declare war on Germany and Italy. Since World War II, the United States has never officially declared war again according to Article I Section 8 of the Constitution, even though it has engaged in numerous wartime operations such as Korea, Vietnam, Grenada, Libya, the Persian Gulf War, Iraq, and Afghanistan/Pakistan. Instead, sub-constitutional measures such as congressional “authorizations”, “war powers” acts, and UN resolutions have been adopted to engage in a number of bloody and extremely costly conflicts. Though some critics would argue that such an argument is based on semantics, this author contends that it reflects a steady erosion of the rule of law, a reality that should give pause to independent-minded voters.
The Founders laid out specific war duties in Article I Section 8 and Article II Section 2 of the Constitution. Article II Section 2 states that the President, “shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..” Article I Section 8 reads, “Congress shall have the power…to declare War, grant Letters of Marque and Reprisal…to raise and support Armies…” In other words, Congress dictates the terms, funding, and rationale of engaging in war, not the President. The President, only after Congress has set the terms, assumes his role as the supreme military commander. This was the case in the War of 1812, Mexican-American War, Spanish-American War, World War I, and World War II. Since then, however, there has been a complete reversal of duties. The President now holds virtually uncontested wartime powers as Congress has consistently abdicated its explicit constitutional authority.
This modern policy is particularly troubling in three regards. First, it creates kings, not constitutionally-bound presidents. It presents the President with a blank check to initiate and conduct war in any way he/she sees fit, regardless of cost, duration, or objectives. Second, it severely limits the power of Congress, the very chamber of the people, and the bedrock of a civilian-led government. Third, in the case of UN resolutions, it undermines national sovereignty by sending our brave men and women to war under international flags.
The tragic events of 9/11 accelerated this disturbing trend. Instead of officially declaring war on the Taliban-led government of Afghanistan or granting Letters of Marque and Reprisal against Al-Qaeda, Congress issued President Bush a blank check in the form of an official congressional authorization. The same verdict holds true with Iraq. Eight years later in Afghanistan, we’ve raised troop levels every year, spent at least $250 billion, lost 800+ men and women, and developed a PTSD epidemic and record suicide rate in the military. Almost seven years later in Iraq, we still field 120,000+ troops on the ground, have spent at least $750 billion, lost over 4,000 men and women, and developed a PTSD epidemic and record suicide rate in the military. In addition, the lack of an official war declaration and/or Letters of Marque and Reprisal have created a hotly contested legal dilemma regarding the treatment of enemy combatants. Are they criminals, enemy combatants, or prisoners of wars? Arguments remain because constitutional law was not strictly implemented in the wars’ beginnings.
Now, it is not my intent to debate the wisdom of the AfPak and Iraq Wars. However, the protracted nature of both conflicts brings the rule of law back into full focus. President Obama, a constitutional scholar by trade, continues to execute the same open-ended war making powers, despite a lack of an official declaration of war or Letters of Marque and Reprisal. And despite forfeiting its wartime authority, Congress, on both sides of the aisle, continues to grant President Obama the necessary funding to extend the wars.
One wonders if Congress had not surrendered its constitutional authority to two, different presidents, would the outcome have been different? It’s mere speculation but worth serious consideration, especially on Pearl Harbor Day. If Congress had strictly followed the Constitution, would budget projections have been more precise, casualty count predictions more accurate, timetables better defined, and objectives more specifically delineated? Maybe, maybe not.
Critics will counter by stating that “congressional authorizations”, “UN resolutions”, or “Wartime Powers” Acts are no less constitutional. They also claim that they’re more convenient in today’s modern setting. If these claims are true, then why did FDR and Congress not employ this same line of reasoning in World War II? Or, why was this rationale not adopted in the four major wars before World War II? And if certain parts of the Constitution are a bit antiquated for today’s more sophisticated society, what about the rest of the Constitution? How do we decide which parts to abide by, and which parts to ignore? Fast forward to 2009, and a Tea Party movement has re-emerged, and many in the budding movement claim that Congress possesses no constitutional authority to authorize bailouts of private industry or create a national health care plan, yet a majority of these protestors would likely offer little resistance to the “congressional authorizations” for the AfPak and Iraq wars.
As independents continue to comprise a greater and greater percentage of the electorate, they possess a golden opportunity to reinstitute the rule of law. They possess the opportunity to begin remaking and reshaping Congress, so that it can regain its explicit constitutional authority over war and other weighty matters. The President of the United States has assumed king-like status in matters of war, limited congressional input by the increasing abuse of secretive executive orders, and bypassed congressional oversight with a growing dependence on special appointments (i.e. “czars”) to craft public policy. In short, the office of the President of the United States has become that of a Philosopher-King instead of a faithful and accountable servant to the Constitution.
On this “date which will live in infamy”, let’s remember that obeying the Constitution and following the rule of law are not mere subjective precepts or archaic platitudes, but time-honored values that serve as the very foundation of our timeless republic.